Lodger lied during application, outcome on page 29...!

themastergoose

CKhalvashi said:

themastergoose said:

Had to remove some personal info, but here's what he signed:

I'm not picking on you here, merely pointing out my interpretation of the legislation which a judge could take if they wish, assuming this does make it to court.

As rent is payable weekly under Section 3A, was a rent book provided? This would be a legal requirement under Section 4(1) Landlord and Tenant Act 1985. This could, in the modern world, be something as simple as a 3 line spreadsheet (date, payment, date recrived) on something like Google Docs (or a printed copy), so doesn't need to be a physical rent book. Failure to provide this is a criminal offence.

Section 12B of the agreement strictly wouldn't give a right to complete the checks required as a result of OP's work, however a Basic disclosure may be ok in this event under the contract wording. This should have also taken into account that some of the convictions would never become spent, however the full circumstances surrounding these convictions given section 2C(2) had already come into effect should possibly have been given more consideration. I'm not going too far into the work element of this as enough information has been given to cover this, but this possibly could have been more clear with something along the lines of 'Due to the employment of the landlord, a full DBS disclosure will be required'.

In addition, I wasn't there so can't judge his behaviour, but additionally neither was the judge, however if there was nothing to suggest there may be further criminal offences, a judge could take a dim view of section 12B and the circumstances around which this was effectively used. It's also possible it could be deemed an unfair term and removed from the agreement entirely, however I'm not sure what the chance of this happening may or may not be.

In any event it may be considered that the word 'immediately' may constitute an unfair term due to a legal right to 'reasonable notice', although note there is no definition of reasonable notice in law.

In short, I consider 12B to be unclear given the circumstances, to not state what may be required and to potentially be unfair on that basis.

I do note that to mitigate this a full refund of unused nights and deposit (from memory) has been given though, and will give OP credit for this.

The Landlord and Tenant Act 1985 doesn't apply to lodgers. He was given a receipt and running balance each week tho upon payment, but it's not a criminal offence if I didn't do it for a lodger neither. I'd be in more trouble if I didn't declare the income to HMRC on my self assessment return to be quite blunt.

Regarding 12B, this outlines the outcome. His disclosure form which is separate is a lot more comprehensive. It's clear, and was also given many chances along the way when filing it all in to be honest. My employer will not allow anyone with unspent convictions to reside here, so should I be dismissed for poor judge of character and potential criminal association when he intentionally lied to get the property? These terms and an immediate eviction are fully justified if you ask me, as they'd only ever kick in if someone was to, ohhhh I don't know, lie.

I'll repeat again also that children visit the property. He's got a serious offence against a boy who he's not only still under probation for, he's also not allowed any contact for a further 6 years I think it was.

He's a perfectly fine, upstanding member of society who presents no further risk. Silly me...

jkdd77

I'm no expert, but on the Consumer Rights Act point, I observe from: https://letlink.co.uk/letting-info/topics/unfair-terms
"The Act does not apply to a contract unless one party is a seller/supplier and the other is a consumer...[snip]... If, for example, the landlord is just letting his own home whilst he is abroad, he would not be considered to be letting in the course of business."

anotheruser

themastergoose said:

GDB2222 said:

He does have some sort of argument over the toiletries, towels, etc. It’s crazy, in my view, to advertise the room as all inclusive, as it’s far too vague. 

Let me clarify - I disagree with the whole "everything's included" aspect. What he's hinging on is the advert stated "All inclusive bills". The agreement he read and signed simply states "includes all bills". He's saying because it doesn't specify utility bills he's got a case.

Hmm.
If I have foot rub bills, is that included?
Or a personal phone bill - is that included?
What about my credit card bill, does that count?

There needs to be a common sense limit - an example is many rentals that say exactly that "includes all bills".
I can't see a judge agreeing to consumables, such as food as included.  They may want caviar with every meal - would you be expected to supply that?  I don't think so.

anotheruser

CKhalvashi said:

I don't have any criminal convictions and don't rent, so can't confirm from experience, but your actions are not a standard practice I've seen when renting a property or room. 

If you have no experience, is there much merit to your post?



People need to stop posting "I'm no expert" and "don't quote me on that but..." - the OP needs advice, not people guessing based on stuff they've heard or stuff they think should happen.

The last 10 pages have been near on exactly that.




@themastergoose - what is the latest?

MaryNB

anotheruser said:

themastergoose said:

GDB2222 said:

He does have some sort of argument over the toiletries, towels, etc. It’s crazy, in my view, to advertise the room as all inclusive, as it’s far too vague. 

Let me clarify - I disagree with the whole "everything's included" aspect. What he's hinging on is the advert stated "All inclusive bills". The agreement he read and signed simply states "includes all bills". He's saying because it doesn't specify utility bills he's got a case.

Hmm.
If I have foot rub bills, is that included?
Or a personal phone bill - is that included?
What about my credit card bill, does that count?

There needs to be a common sense limit - an example is many rentals that say exactly that "includes all bills".
I can't see a judge agreeing to consumables, such as food as included.  They may want caviar with every meal - would you be expected to supply that?  I don't think so.

I think OP has misremembered their own agreement. Obviously unless the OP posts the advert I can't comment on that, but the agreement clearly says utility bills.

Although it and a few more sections could be reworded a bit to avoid ambiguities going forward. 

Slinky

anotheruser said:

themastergoose said:

GDB2222 said:

He does have some sort of argument over the toiletries, towels, etc. It’s crazy, in my view, to advertise the room as all inclusive, as it’s far too vague. 

Let me clarify - I disagree with the whole "everything's included" aspect. What he's hinging on is the advert stated "All inclusive bills". The agreement he read and signed simply states "includes all bills". He's saying because it doesn't specify utility bills he's got a case.

Hmm.
If I have foot rub bills, is that included?
Or a personal phone bill - is that included?
What about my credit card bill, does that count?

There needs to be a common sense limit - an example is many rentals that say exactly that "includes all bills".
I can't see a judge agreeing to consumables, such as food as included.  They may want caviar with every meal - would you be expected to supply that?  I don't think so.

4a&b state what's included with the addition of c if he wanted laudry done.

themastergoose

anotheruser said:

CKhalvashi said:

I don't have any criminal convictions and don't rent, so can't confirm from experience, but your actions are not a standard practice I've seen when renting a property or room. 

If you have no experience, is there much merit to your post?



People need to stop posting "I'm no expert" and "don't quote me on that but..." - the OP needs advice, not people guessing based on stuff they've heard or stuff they think should happen.

The last 10 pages have been near on exactly that.




@themastergoose - what is the latest?

Latest is that I've reply stating he doesn't have a case nor suffered any loss. I went into detail about each answer as per two earlier users who gave a great reply.

I'll wait and see what he does. I'm assuming he can't sit on it forever after issuing a letter and then say decide to start a claim in say July?

saajan_12

saajan_12 said:

Ignoring some of the nonsense on illegal CRB checks - the lodger gave their consent, just like many others do for jobs, volunteering, etc so there's no gross pressure here. However I do think you should respond to the LBA - the lodger's claims can mostly be defended, but its not a slam dunk and if the judge finds at all in their favour, then responding before court protects you from court costs if they unreasonably escalate it instead of discussing mutually. 

themastergoose said:

Ok, so he's not intending to leave quietly in a sense. His mum hand delivered a "Letter before action" this afternoon, as he intends to take me thru the small claims court for breach of contract and misrepresentation. She personally stated that I'm "purely driven by greed and not fit to be a landlord". - ignore, inflammatory

So, the grounds of his case are as follows:

• Signed a 6 month minimum agreement that the landlord ended without appropriate notice being given. I was left homeless without notice. - this is debatable. 
  They had no tenancy protections, but just a simple contract should be followed with claims for damages unless there's a *material* breach. So
  a) was the passing the criminal check part of the written agreement or just verbal? Did it specify what constituted a 'pass' eg no criminal history, nothing less than x years old etc? If not part of the agreement, then that's not really a breach (although you could have used it as a basis to not let at all before starting).
  b) Potential argument for mutual termination of the contract as he left and you returned deposit + x days of rent. Would depend on the discussions around this.   
• Landlord failed to place the deposit in a recognised protection scheme as required by law. - nonsense, not required as he was a lodger, not a tenant. 
• The property was marketed as all inclusive, but the landlord in fact has lot's of exclusions and hidden extra costs not disclosed originally. Not exhaustive, but there's no basic consumable's and toiletries provided, no cleaning provisions and landlord wants to charge an additional £50 monthly for a towel and laundry service if I want it. The cost is manifestly expensive, possibly exploitive - and should be included as per the original advert. - The question is really what could 'all inclusive' reasonably be interpreted to mean = for a lodging situation, not a hotel, I'd say that's all utility bills, TV, possibly cleaning, toilet paper, use of a hoover, pots, pans. I'd think towels, laundry, other toiletries and food would be more akin to a hotel. However this is a question of interpretation. If the contract was ambiguous, then that's usually interpreted in favour of the person who didn't draft it, but there's also a degree of what one would reasonably interpret. 

He's seeking 5 months and 1 week rent as compensation for breaking the contract early. A further 3x his deposit amount for not using an approved scheme, and lastly £37 for a towel bundle and laundry detergent he had to supply "because I refused".

Total value of the claim is £4563 that he's asking for within 14 days, otherwise he's filing the claim and will add a further £205 filing fee and accrue interest on the balance being sought at £1 daily for each day after the filing, until a settlement is reached. - court costs are reasonable, hence reply briefly to the LBA to avoid this. 

My first reaction is to tell him to **** off as the basis for the eviction was because he lied to secure the property in the first place. He was given notice also, 1 weeks notice as he pays rent weekly. He left early of his own choosing. - sounds reasonable if he did materially breach the contract (see point 1 above). If not, then you'd have to give notice in line with the contract ie adhere to the min term, and just sue for damages from minor breaches.  

His deposit and the 2 unused days were refunded via bank transfer on the Wednesday 26/01/22. - what was discussed around this? Potentially a mutual early termination?

So - Now what do I do? 

1) Eviction: It was perfectly fine to do checks to which the lodger consented. The question is whether 'failing' those checks was well defined in the agreement and hence a material breach. Please quote. 
Yes-> Fine to give 1 week notice, and then evict.
No-> Then once he had moved in, its too late and you have to go by the contract. If he breached other minor terms, then you can claim monetary amounts but not tear up the whole agreement. 
If you did prematurely evict him, then as a lodger that's a civil claim for actual damages (still not an 'illegal eviction' in the criminal sense). eg if he has receipts for emergency movers, last min accommodation, overlap in rent, missed day's work etc. Not an arbitrary x months rent in compensation. 

Also, what exactly was discussed around his move out / return of 2 days rent? Could that be construed as a mutually agreed early termination? 

2)  Deposit Protection: He wasn't a tenant, so not applicable. Deposit returned in full. 

3)  All inclusive: please quote the contract here. Its debatable what that would reasonably include. His claim if any would be for actual costs of items he had to buy which he thinks you should have provided, not an arbitrary fee.

4) Court costs: While there is a reasonable argument for £0 owed, this is not iron clad as above, and court can be unpredictable. If the judge finds the lodger's claim has merit and you ignored attempts to resolve before court, then more likely to award courts costs against you, vs if you responded to an LBA but the lodger prematurely went to court. So personally I would respond briefly. 

Okay so going back to this list, with the agreement now provided:
1) Eviction:

• Clause 12b good that a 'failed' check is simplified as just undeclared convictions. HOWEVER this specifies "immediate termination" which could be seen as unreasonable / unfair. Arguable whether a judge would just interpret immediate as within 1 week which is more reasonable, or just strike out the term as an unfair clause. 
• Clause 12c allows termination with 1 week notice for any reason. However this is ambiguous re whether that applies during the first 6 months and potentially contradicts the minimum 6 month term and monthly commitment (Clause 2c). The ambiguity would usually take the interpretation favourable to the party that didn't draft it, ie lodger, ie a min 6 month term and notice (1week or 1 month) can be served thereafter. 

So depends on a judge how they interpret both clauses, but its possible that they both fail, in which case you have breached the agreement. However as above, a claim would be for actual damages, not theoretical compensation. 

2) Deposit Protection: nonsense

3) All Inclusive: The agreement is pretty clear on what is included. and given its not directly contradictory to the advert to constitute misadvertising ('all inclusive' is vague but the agreement clarifies it), so I think you're fine here. 

4) Court costs: point still stands, give a succinct reply pointing out why their claim is invalid based on the contract (not about who is / isn't an honest human)

themastergoose

MaryNB said:

anotheruser said:

themastergoose said:

GDB2222 said:

He does have some sort of argument over the toiletries, towels, etc. It’s crazy, in my view, to advertise the room as all inclusive, as it’s far too vague. 

Let me clarify - I disagree with the whole "everything's included" aspect. What he's hinging on is the advert stated "All inclusive bills". The agreement he read and signed simply states "includes all bills". He's saying because it doesn't specify utility bills he's got a case.

Hmm.
If I have foot rub bills, is that included?
Or a personal phone bill - is that included?
What about my credit card bill, does that count?

There needs to be a common sense limit - an example is many rentals that say exactly that "includes all bills".
I can't see a judge agreeing to consumables, such as food as included.  They may want caviar with every meal - would you be expected to supply that?  I don't think so.

I think OP has misremembered their own agreement. Obviously unless the OP posts the advert I can't comment on that, but the agreement clearly says utility bills.

Although it and a few more sections could be reworded a bit to avoid ambiguities going forward. 

I've not misremembered anything, but you're saying that because it says utility bills are "fully inclusive of the monthly rent", he'd have legal basis to claim his personal bills too?

Heck, why don't I just invite him to a slice of the proceeds of the house if I sell while I'm at it?

CKhalvashi

anotheruser said:

CKhalvashi said:

I don't have any criminal convictions and don't rent, so can't confirm from experience, but your actions are not a standard practice I've seen when renting a property or room. 

If you have no experience, is there much merit to your post?

Having no direct experience from the lodger's point of view in very specific circumstances doesn't mean I have no experience working with the legislation.

I have been able to quote the legislation I'm using as I go, which is more than some posters have been able to do.

jkdd77 said:

I'm no expert, but on the Consumer Rights Act point, I observe from: https://letlink.co.uk/letting-info/topics/unfair-terms
"The Act does not apply to a contract unless one party is a seller/supplier and the other is a consumer...[snip]... If, for example, the landlord is just letting his own home whilst he is abroad, he would not be considered to be letting in the course of business."

This is going to be (I think) where the argument is going to lie.

As far as I'm concerned (and as far as I'm aware the law is concerned), this is a commercial arrangement for both parties. The lodger pays their money, they have somewhere to stay. Being 'set up' as a business (which I assume the OP means this income running through a legal entity or being in some way connected with self-employment) in this regard would not exclude someone from the Consumer Rights Act (or it being a commercial arrangement), mainly as this is significantly different from a group of friends (or someone known to the OP) staying in exchange for payment on what would normally be much more informal terms.

According to gov.uk, reasonable notice would still need to be given, so any clause with 'immediately' is likely to be unfair.

That said, quickly for the OP, I've popped you a PM with a creative potential solution to this, as I'm not 100% sure the lodger isn't reading this thread and don't want to give him ideas in how to defend it.